1. ' TANZIL-UR-REHMAN, J.--The above petition was dismissed by our short order passed today, following are the reasons for the same.
2. ' The petitioners on 20th June, 1987 filed a First Class Civil Suit No,60/1987 for declaration and injunction in the Court of Senior Civil Judge, Tando Muhammad Khan against the Government of Sindh through Deputy Commissioner and 8 others alleging that the agricultural land in question was property of one Mohan Lal son of Kotomal, who was permanently residing at Hyderabad and never shifted to India after partition of the Sub-continent. The said Mohan Lal expired in the year 1961-62 and, thus, the land left by him was non-evacuee property. The said land, however, treated as an evacuee property before 1-1-1957, was nullity in the eye of law. The said land was, however, transferred by respondent No,2 (Settlement and Rehabilitation Commissioner) to respondents Nos.
3. 3 and 4 in lieu of their claims who in turn sold the same to respondents Nos. 5 to 9, which was also nullity in the eye of law. It was, however, alleged that the petitioners were in adverse possession of the said land for more than 12 years and as such the petitioners acquired title over the said land.
4. The following reliefs were claimed in the said suit:--
(a) That this Hon'ble Court may be pleased to declare that the order passed by the Settlement & Rehab. Authorities thereby treating the suit land fully mentioned in para. No,2 as an evacuee property and transferring the same as such to defendants Nos. 3 and 4 is illegal, mala fide, inoperative, void ab initio without jurisdiction, ultra vires and nullity in the eye of law and the same is neither binding on the plaintiffs nor has created any right, title or interest of any kind in favour of defendants Nos. 3 and 4.
(b) That this Hon'ble Court may be pleased to declare that the sale of suit land fully mentioned in para. 2 by defendants Nos. 3 and 4 in favour of defendants Nos. 5 to 9 is also illegal, mala fide, inoperative, without lawful authority, void ab initio and nullity in the eye of law and is neither binding on plaintiffs nor has created any right, title or interest of any kind in favour of defendants Nos.5 to 9.
(c) That this Hon'ble Court may be pleased to issue a permanent injunction against the defendants thereby restraining them from dispossessing as well as interfering with the possession of plaintiffs over survey Nos. 224, 225, 257 and 260 situated in Deh Dadoki Taluka Tando Muhammad Khan District Hyderabad directly or indirectly personally or through their agents, servants or subordinates i.e, in any way and manner.
(d) That the costs of the suit be borne by the defendants.
(e) That any other relief which this Hon'ble Court deems fit and proper may also be awarded."
5. ' The above suit was rasisted by the respondents, issues were settled on 10-9-1988 and the matter was adjourned to 8-10-1989 for petitioners' evidence. The petitioners filed applications for adjournment on as many as five dates of the hearing and failed to either examine themselves or produce witnesses to be examined on their behalf. On 14-1-1989 when an adjournment application was filed, the learned Senior Civil Judge adjourned the case as last chance but again the petitioners failed to examine themselves or any other witness. Again the petitioners made an adjournment application which was granted to them for producing evidence on the date of hearing of their choice. Lastly, on 4-3-1989, the case was adjourned at petitioner's request to 18-3- 1989 on explicit undertaking that they will aduce evidence on the next date viz. 18-3-1989 which was fixed as suggested by the petitioners. On 18-3-1989 again an application was filed by their counsel for adjournment on the ground that the petitioners were to appear in a Criminal Appeal pending before the Sessions Court at Hyderabad. Learned Senior Civil Judge dismissed the suit under Order 17 Rule 3 for non-production of any evidence on behalf of the petitioners.
6. ' The petitioners thereupon filed Revision application in the Court of District Judge, Hyderabad which was dismissed by the learned District Judge by his order dated 22nd November 1989 on the ground that the said Revision application was not competent as dismissal of a suit under Order 17 rule 3 was to be challenged through an appeal under section 96 C.P.C. The petitioner then chose to file the above constitutional petition in this Court for seeking the following reliefs:-- "(a) That the R&Ps in the first class Civil Suit No,60/87 (Re: Jamal and another v. Government of Sindh and others), may be called for from the Court of the Senior Civil Judge, Tando Muhammad Khan.
(b) Declare that the order dated 18-3-1989 passed by the learned Senior Civil Judge, Tando Muhammad Khan, on the petitioned adjournment application dated 18-3-1989 in the above 1st Class Civil Suit No,60 of 1987, and the orders dated 22-11-1989 passed by the learned District Judge, Hyderabad, in the petitioners' Civil Revision Application No, 57 of 1989, both impugned herein through this humble petition, are illegal, unlawful, not maintainable and without any lawful authority and jurisdiction and set aside the same.
(c) Remand the matter to the Senior Civil Judge Tando Muhammad Khan, to decide the suit on merits after affording full opportunities to the parties to lead their respective evidence.
(d) Any other relief/reliefs which this Hon'ble Court deems just and proper.
(e) Award the costs of this petition to the petitioners."
7. ' Mr. S.H. Hashmi, learned counsel for the petitioners raised two-fold contentions in support of the petition namely:--
(i) That the learned Senior Civil Judge ought to have granted the adjournment application dated 18-3-1989;
(ii) That the dismissal of the suit by the learned Senior Civil Judge ought to have been, if at all, under Order 17 rule 2 and not under Order 17 rule 3 C.P.C.
8. ' However, we sent for the file of the Cr. Appeal No,2/1989 which is now pending in the Court of IIIrd Additional District Judge, Hyderabad. On perusal of the case diary it is found that the above appeal was adjourned to 18-3-1989 in the presence of the petitioner. The date in the civil suit was fixed for 4-3-1989 was got adjourned to 18-3-1989, when it was in the know of the petitioners themselves that they had to appear before the learned Additional Sessions Judge in the Criminal Appeal at Hyderabad. Grant or refusal of adjournment lies within the domain of the Court to which such application is moved. It has always been considered to be a discretionary matter with the Court concerned. However, the discretion should be exercised judiciously allowing or rejecting the adjournment application. Superior Courts have always been reluctant in exercise of their discretionary and equitable jurisdiction under Article 199 to interfere into the orders passed by the Courts below in exercise of their discretionary jurisdiction, such as grant or refusal of adjournment, unless it is manifestly shown to be arbitrary or fanciful. We feel that in the instant case the jurisdiction in refusing the adjournment by the learned Senior Civil Judge was exercised properly and judiciously and we feel satisfied that the order passed by him on 18-3-1989 in rejecting the application for adjournment is justified in the circumstances as stated above.
9. ' As regards the second contention, it 'seems beneficial to reproduce rule 3 of Order 17 which reads as under:- "3. Court may proceed notwithstanding either party fails to produce evidence, etc. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may notwithstanding such default, proceed to decide the suit forthwith."
10. ' From the order of the learned Senior Civil Judge, it is manifest that the case was adjourned from time to time at the instance of the petitioners to produce their evidence which they failed in spite of the fact that time was granted to them more than once. On 4-3-1989 when the matter was last adjourned at the request of the petitioners to 18-3-1989, as suggested by and on behalf of the petitioners, for the purpose of adducing evidence, on the said date, neither the petitioners appeared themselves for giving evidence nor any witness on their behalf was in attendance. In any case, nothing was brought on record to show that even any witness was summoned by the petitioners to be examined on 18-3-1989. Admittedly, the burden of proof of all the issues framed in the suit was on the petitioners. Learned Senior Civil Judge, in the circumstances, when no evidence was led by the petitioners on a number of dates and lastly on 18-3-1989 fixed for said purpose, was justified in law to proceed with the suit under Order 17, Rule 3 and was justified in dismissing the same under order 17 Rule 3, C.P.C. As the petitioners failed to produce any evidence for which time was granted to them. The conditions enumerated in rule 3 seem to have been fulfilled for resorting to the dismissal of the suit underthe said rule.
11. We would also like to add that the constitutional jurisdiction in a matter of such a nature wherein the jurisdiction seems to have been exercised in accordance with the law, the impugned order cannot be said to have been passed without lawful authority, because the authority is vested in the Civil Court as provided under Order 17 rule 3 C.P.C. The dismissal of the suit under Order 17 Rule 3 means a decree which is only appealable under section 96 C.P.C. No revision lies against the same, as has rightly been held by the learned District Judge.
12. ' We, therefore, find no merits in the petition which is dismissed in limine.